Florida’s Abortion Amendment Is Deceptive

On November 5, the people of Florida will vote on whether to amend the state constitution to remove abortion from political contestation. Abortion advocates are pushing Amendment 4 in response to the Heartbeat Protection Act, which was passed by the state legislature in April of 2023 and prohibits abortion after six weeks, with exceptions (such as rape, incest, or risk to the mother’s life). But the amendment, which needs sixty percent of the vote to pass, is written to deceive voters: one stroke of the pen threatens to settle several distinct issues under the guise of protecting abortion up to viability. 

Florida voters, like Americans generally, hold varied and complicated beliefs on abortion. According to Pew Research, only nineteen percent of Americans support abortion on demand throughout pregnancy; forty-two percent say abortion should be broadly “legal, [with] some exceptions”; twenty-nine percent say it should be broadly “illegal, [with] some exceptions”; and eight percent say it should be “illegal, no exceptions.” Fifty-six percent “say that how long a woman has been pregnant should matter in determining when abortion should be legal.” An April 2023 Marist poll found that nearly two in three Americans want to limit abortion to the first trimester. A November 2023 Harvard/Harris poll found that seventy-three percent of voters would limit abortions to the first fifteen weeks. (A fetus is not generally considered “viable” until the twenty-third week.) Another poll found that two-thirds of Americans support imposing a twenty-four hour waiting period between meeting with a provider and obtaining an abortion. And seventy percent believe that abortionists should be required to notify parents before performing abortions on girls under the age of eighteen. 

Moreover, even subtle changes to proposed laws—or to questions asked by pollsters—can greatly affect voter reactions. For example, one March 2023 poll found that seventy-five percent of Florida residents somewhat or strongly opposed “a ban on abortion after six weeks of pregnancy in Florida, with no exceptions for rape or incest.” But another poll from that month found that sixty-two percent of respondents “support a limit on abortion after a baby’s heartbeat is detected, with exceptions for rape, incest, or to save the life of the mother.” Simply including exceptions and a physical description of the stage of development produced a total inversion of the polling results.

Americans clearly conceive of different regulations as distinct issues. Unfortunately, Florida voters are being denied the opportunity to make these distinctions in the ballot box. The drafters of Amendment 4 employed a deceptive tactic known as “logrolling,” “a practice wherein several separate issues are rolled into a single initiative in order to aggregate votes or secure approval of an otherwise unpopular issue.” This violates the requirement of article XI, section 3, of the state constitution that a proposed amendment embrace only “one subject and matter directly connected therewith.” But the Florida Supreme Court, which must approve the language of such ballot initiatives, broke with its precedent of removing amendments guilty of logrolling from consideration.

The ballot text reads: “No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider. This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.”

An amicus brief submitted by the Susan B. Anthony List to the Florida attorney general clarifies the problem: 

The initiative here, misleadingly packaged as one that ‘limit[s] government interference with abortion,’ asks voters to approve a constitutional amendment containing as many as eight distinct bans on different types of abortion regulations. The effect of lumping them in a single initiative—an effect undisclosed to voters—is to prohibit virtually any statute, administrative rule, or judicial decision regulating abortion and to remove the subject from political debate.

The amendment “will bar any branch of government” from enforcing four categories of restrictions (“prohibit,” “penalize,” “delay,” and “restrict”) with respect to two subjects (“abortion before viability,” and abortion “to protect the patient’s health”) for a total of eight bans. This creates significant conflicts for most voters, as the above polling indicates. For example, many voters who favor broad abortion access also favor waiting periods (“delay”) as a safeguard against coercion or rash decision-making. Other broadly pro-choice voters support requiring parental consent for minors having abortions; the amendment leaves in place the legislature’s ability to require abortionists to “inform” parents, but prohibits requiring their “consent,” as this would “restrict” access. And nearly all voters are horrified by partial-birth abortion, which the bill could enable for providers whose definition of “health” is infinitely flexible. 

On this last point, the amendment’s vagueness is strategic. Most voters will read “health” to mean “life,” the literal physical well-being of the mother. But because the amendment fails to define its terms, the health of the mother could include anything from her psychological health to her social or financial “health.” The upshot is that, far from limiting abortion to pre-viability, Amendment 4 effectively legalizes abortion up to the moment of birth—and perhaps beyond.

Proponents of Amendment 4 will of course say that “abortion” is the single issue. There is some merit to this argument in that if the amendment passes it would allow for abortion on demand, throughout the full term of a pregnancy, without restrictions. But for advocates to claim this would be to admit the amendment was designed to deceive Florida’s voters, who are sure to leave the ballot box confused and conflicted. Florida voters must not allow it to reach the sixty percent threshold required for codification.

Gates Garcia is an investor and philanthropist from Tampa. 

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Image by Erik Hersman, from Flickr, via Creative Commons. Image cropped.